Global Immigration: The Netherlands

The EU Blue Card is compared with the Knowledge Migrant Scheme; several new pieces of legislation are summarized.

EU Blue Card and Dutch Migrant Scheme

The European Union (EU) Blue Card is a residence and work permit for highly skilled non-EU/EER nationals, so-called third-country nationals. The EU Blue Card does not provide full access to the EU labor market as such, but only to the labor market of the EU Member State that has issued the EU Blue Card.

The implementation date of the European Directive on the EU Blue Card (2009/50/EG) was June 19, 2011. The Netherlands has implemented the EU Blue Card in the Dutch Immigration regulations.

What are the characteristics of the EU Blue Card? There are two main requirements: a salary threshold and a diploma of a post-secondary higher education program that lasted at least three years. The salay threshold is 1.5 times the average gross annual salary in the concerned EU member state. In the Netherlands the threshold is EUR 60,000. Before an application can be submitted, first the diploma must be recognised by a Dutch organization called International Credential Evaluation (http://www.idw.nl),  which specializes in validating diplomas. A decision on an EU Blue Card application may take up to 90 days.

The Dutch highly skilled migrant program, the Knowledge Migrant Scheme (KMR), will coexist beside the EU Blue Card. Compared to the KMR Scheme, the EU Blue Card procedure is laborious and slow. The KMR Scheme involves a salary threshold only, no skills or education test. The current salary thresholds are EUR 50,619 gross per annum for those aged 30 or over, and EUR 37,121 for those under the age of 30. The processing time for the visa is 2 weeks and for the residence card is 4 weeks.

The EU Blue Card, on the other hand, offers the advantage of some kind of intra-EU mobility after 18 months. The EU Blue Card holder may move, after this period, to another EU Member State for the purpose of employment under the conditions as set out by the EU Blue Card, without first having to request a visa.

Another advantage of the EU Blue Card is that absence of the EU Blue Card holder from the territory of the EU, for a period shorter than 12 consecutive months and up to a total of 18 months, will not interrupt the cumulations of 5 years of legal and continuous residence, after which a long-term (permanent) residence permit may be applied for.

A final note: the United Kingdom, Ireland and Denmark are not participating in the adoption of the EU Blue Card Directive and are not bound by it, or subject to its application.

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New Netherlands Legislation

The Employment of Foreigners Act (EFA) demands work authorization for any type of work by a foreign national (non-EU/EEA/Swiss) for companies or individuals in The Netherlands. Non-compliance may result in administrative fines. The applicable amounts are:

• € 8,000 per employee for employment without adequate work authorization
• € 1,500 per employee if no copy of the original ID is stored in the company’s records
• 150% of these amounts per employee for a repeated offense

There is no maximum amount; the fine is calculated mathematically on the basis of the number of employees in violation, regardless of how many hours they have worked or what their position in the company was. The EFA prescribes that every violation will be fined, without previous warning.

In case of secondment, both the seconding company and the client that actually employs the foreign worker will be fined; they are both separately liable and payment by one company does not liberate the other. In case of contracted work, even multiple companies can be fined; every company in the chain of contracts, from the principal to the last subcontractor, is liable for the same offense and will be fined the same amount.

The Modern Migration Policy Act, expected to enter into force some time in 2011, introduces another set of administrative financial penalties in addition to the ones noted above. Under this new law, companies will have a duty to inform the Dutch Immigration and Naturalization Service about all relevant changes; must commit to careful recruitment of highly skilled migrants; and must keep any relevant piece of information with respect to the foreign worker on record for a period of 5 years after the employment has ended.

Violations may result in the following administrative sanctions, to be imposed on the company:

• a warning for a first offense
• € 3,000 per employee for a second offense
• € 4,500 per employee for a repeated offense
• offenses of a very serious nature may result in blacklisting of the company and a temporary or even permanent ban from using the KMS